TY - JOUR
T1 - Discriminatory motive and the but for test
T2 - The proper approach to direct discrimination in Britain and the United States
AU - Connolly, Michael
PY - 2007/9/1
Y1 - 2007/9/1
N2 - In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.
AB - In recent years, senior judges in Britain have signalled a departure from the longestablished but for test used for direct discrimination cases. They appear to favour instead that the defendant held a discriminatory motive, or even hostility, for liability. In the United States, courts have settled upon a requirement for discriminatory motive, but afforded it such a broad interpretation that is scarcely distinguishable from the but for model, and is a convenient, if inaccurate label. This paper aims to demonstrate, using seven kinds of direct discrimination case, that neither a discriminatory motive doctrine, nor the but for test, are suitable models to analyse direct discrimination claims, and that the proper approach is a simple purposive interpretation of the statutory formula provided in both the UK and the US.
UR - http://www.scopus.com/inward/record.url?scp=34547769171&partnerID=8YFLogxK
U2 - 10.1177/135822910700900103
DO - 10.1177/135822910700900103
M3 - Article
AN - SCOPUS:34547769171
SN - 1358-2291
VL - 9
SP - 37
EP - 56
JO - International Journal of Discrimination and the Law
JF - International Journal of Discrimination and the Law
IS - 1
ER -